Humiliation After A Privacy Invasion Is Not An 'Actual Damage,' Rules Supreme Court

"There is nothing absurd about a scheme that limits the Government’s Privacy Act liability to harm that can be substantiated by proof of tangible economic loss," wrote Supreme Court Justice Antonin Scalia.

After a ruling from the Supreme Court today, should your TSA body scan somehow get out into the public and go viral, you’re going to be out of luck in collecting damages unless it causes you to lose your job.

"After today, no matter how debilitating and substantial the resulting mental anguish, an individual harmed by a federal agency’s intentional or willful [exposure of their personal information] will be left without a remedy unless he or she is able to prove [pocketbook] harm," wrote Justice Sonia Sotomayor today, dissenting from a Supreme Court ruling [pdf] that will make it harder for U.S. citizens to successfully sue government agencies that publicize embarrassing personal data.

The Supreme Court was unsympathetic to the plight of pilot Stanmore C. Cooper who sued the government after the Social Security Administration, from which he was receiving disability benefits, revealed to the Federal Aviation Administration, from which he had a pilot's license, that he had H.I.V. (He had been diagnosed in 1985.) Cooper had concealed his medical condition from the FAA for years because he feared discrimination based on his disease and that it would reveal his sexual orientation as a gay man. (Mike Sacks at the Huffington Post has a nice backgrounder on the case.) Once outed (for lying) on federal forms, he pled guilty, lost his pilot's license, and paid a $1,000 fine. But then he sued over violation of the Privacy Act of 1974, which prohibits the government from sharing citizens' personal records with other agencies or with the public without their consent.

In a successful suit over the Act, a plaintiff will collect no less than $1,000 if he can prove "actual damages" as a result of an exposure. A federal court had ruled that Cooper was entitled to damages from the FAA for the severe mental and emotional distress involved in the breach of his confidential medical information. But the private pilot's claims did not fly with the Supreme Court, which interpreted "actual damages" to be of the economic variety.

“The Privacy Act does not unequivocally authorize an award of damages for mental or emotional distress,” wrote Justice Antonin Scalia (who is famously skeptical of privacy rights) in the majority (5-3) opinion. "[T]here is nothing absurd about a scheme that limits the Government’s Privacy Act liability to harm that can be substantiated by proof of tangible economic loss."

In other words, Cooper is out of luck.

As the New York Times points out, Cooper's lawyers had argued that a win for the government would "[make] it easy for the government to silence whistleblowers by subjecting them to embarrassing disclosures."

Justice Elena Kagan abstained. Sotomayor was joined by Justices Ruth Bader Ginsburg and Stephen Breyer in the dissenting opinion.

"Although some privacy invasions no doubt result in economic loss, we have recognized time and again that the primary form of injuries is nonpecuniary, and includes mental distress and personal humiliation," wrote Sotomayor, suggesting that the majority had misinterpreted the intent behind the Privacy Act. "Nowhere in the Privacy Act does Congress so much as hint that it views a $5 hit to the pocketbook as more worthy of remedy than debilitating mental distress...[I]ndividuals can no longer recover what our precedents and common sense understand to be the primary, and often only, damages sustained as a result of an invasion of privacy, namely mental or emotional distress."